First Nat. Bank in Dallas v. Lampman

• Decision Date: 13 June 1969
• Docket Number: No. 4297,4297
• Citation: 442 S.W.2d 858
• Parties: FIRST NATIONAL BANK IN DALLAS, Appellant, v. Hugh W. LAMPMAN, Appellee. . Eastland
• Court: Texas Court of Appeals

Page 858

442 S.W.2d 858

FIRST NATIONAL BANK IN DALLAS, Appellant, v. Hugh W. LAMPMAN, Appellee.

No. 4297.

Court of Civil Appeals of Texas Eastland.

June 13, 1969.

Rehearing Denied July 11, 1969.

Coke & Coke, Charles R. Haworth, Dalas, for appellant.

Andress, Woodgate & Hartt, William Andress, Jr., Dallas, for appellee.

COLLINGS, Justice.

Hugh W. Lampman originally brought suit against Dozier Productions, Inc., a corporation, on November 22, 1967, and on the same day sued out and obtained service of a writ of garnishment on the First National Bank in Dallas, requiring the bank to disclose any indebtedness it owed the defendant corporation or any effects of the corporation which the bank had in its possession. Lampman thereafter recovered judgment against the corporation for $5,250.00. On December 18, 1967, the bank answered that during the garnishment period it was not indebted to the defendant corporation in any amount, that it had in its possession no effects belonging to the corporation and had no knowledge of any person being so indebted or having such possession. Lampman controverted the answer of the garnishee bank, asserting that during the time between service of the writ and the answer the bank had in its possession a certified check drawn by Goodbody and Company on the Bankers Trust Company of New York and payable to the order of Joy C. Dozier; that the check was in the amount of $11,030.64 and had been indorsed for deposit by Dozier Productions, Inc., and deposited and credited to the account of Dozier Productions, Inc.; that the garnishee bank delivered the check in question through channels to the drawee bank and then reacquired physical possession of the check from the drawee bank when the latter refused to pay same because of the lack of a proper indorsement; that the garnishee bank thereafter during the garnishment period delivered the physical possession of the check to Joy C. Dozier, the named payee therein and debited the amount of the check to the corporation. Motions for summary judgment by Lampman and by the bank were presented to and heard by the court. Summary judgment was rendered for Lampman against the bank for $5,250.00, plus interest and costs. The bank has appealed.

It is undisputed that Dozier Productions, Inc., was engaged in booking and producing concerts by leading musicians; that the corporation made deposits in the appellant bank on deposit slips which ordinarily showed the source of the funds deposited; that on November 17, 1967, the corporation deposited in its corporate account in such bank a check payable to Joy C. Dozier issued by Goodbody & Company in the amount of $11,030.64 indorsed by a rubber stamp reading, 'pay to the order of First National Bank in Dallas For Deposit Only Dozier Productions, Inc.' Accompanying the deposit of the check was a deposit slip upon which there appeared in the handwriting and signature of Joy C. Dozier, 'Loan from personal funds, Joy Dozier Lowe' and 'special--loan from personal funds.' Joy Dozier Lowe and Joy C. Dozier are the same person and she will be referred to herein as Mrs. Dozier. At the time of such deposit the corporation physically delivered to the garnishee bank the check in question drawn by Goodbody & Company on Bankers Trust Company of New York payable to the order of Joy C. Dozier. The check, however, was not indorsed by Joy C. Dozier. In accordance with the contract between the corporation and the bank, customary banking procedure and with the statutes of the State of Texas the bank gave the corporation credit for the amount of the check subject to payment by the drawee bank, Bankers Trust Company of New York, on presentation. Appellant bank physically delivered the certified check through banking channels to the drawee bank and thereafter reacquired physical possession of the check from the drawee bank which refused to pay the check because of the lack of proper indorsement. The check did not bear the indorsement of the payee, Joy C. Dozier. These happenings occurred after service of the writ of garnishment and before the return day. The bank charged back to the corporation the amount of the dishonored check, thereby creating an overdraft in the corporation's account.

When the Goodbody check was returned by Bankers Trust, because of lack of proper indorsement, the bookkeeping department of appellant bank contacted Mrs. Dozier, the named payee of the check and told her that it had been returned because it was not properly indorsed, in that it did not bear her personal indorsement. Mrs. Dozier told the bank that the check was her personally owned property and that she would come to the bank to pick it up. On November 24, 1967, Mrs . Dozier did come to the bank and upon her request the check was delivered to her and she signed a receipt therefor. The appellant, garnishee bank, did not make a disclosure of such fact in its answer to the writ of garnishment.

Mrs. Dozier stated in her deposition that the check was her personal property and represented the proceeds of the sale of her personally owned stock by Goodbody & Company; that the indorsement of the check by Dozier Productions, Inc., was neither made by her nor at her direction, and that the check was deposited to the corporation's account through inadvertence and mistake and that she never intended to make a loan or gift of the check to the corporation, but that it was included by mistake with numerous other checks deposited to the corporation's account at that time.

The appellant bank presents points in which it contended that the court erred in granting the garnishor's motion for summary judgment and denying the bank's motion for partial summary judgment because (1) the undisputed facts show that the bank was neither indebted to nor in possession of any effects of Dozier Productions, Inc., that (2) the contingencies presented exonerated the bank from...